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o AFSPA grants the army, central police forces, and state police personnel in “disturbed areas” “certain special powers,” including the right to shoot to kill, to raid houses, and destroy any property that is “likely” to be used by insurgents, and “to arrest without warrant” even on “reasonable suspicion” a person who has committed or even “about to commit a cognizable offence.” o Besides conferring extensive powers on the armed forces, AFSPA provides them immunity from prosecution

The acts have been subject to criticism due to violation of human rights in the areas of their application.

Irom Chanu Sharmila who is also known as the "Iron Lady of Manipur" is a civil rights activist, who has been in a hunger strike for nearly 15 years. Her primary demand to the Indian government has been the repeal of the AFSPA.

Recent Supreme Court ruling on extent of impunity to armed forces in a disturbed area

Dealing a blow to the immunity enjoyed by security personnel under the Armed Forces (Special Powers) Act of 1958 (AFSPA) against criminal action for acts committed in disturbed areas, the apex court held that “there is no concept of absolute immunity from trial by a criminal court” if an Army man has committed an offence.

Every death caused by the armed forces in a disturbed area, whether the victim is a dreaded criminal or a militant or a terrorist or an insurgent, should be thoroughly enquired into, according to the court judgement

The judgment came on a plea by hundreds of families in the north-eastern State of Manipur for a probe by a Special Investigation Team into 1,528 cases of alleged fake encounters involving the Army and the police

Facets of the judgement

It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both... This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties

Throwing out the government’s argument that lack of immunity from prosecution would have a demoralising impact on the security forces, the court asked the Centre to spare a thought for the “equally unsettling and demoralising” picture of a citizen living under the fear of the gun in a democracy.

The court dismissed the government’s argument that every armed person breaking prohibitory orders in a disturbed area runs the risk of being considered an “enemy.”

A thorough enquiry should be conducted into “encounter” killings in disturbed areas because the “alleged enemy is a citizen of our country entitled to all fundamental rights including under Article 21 of the Constitution.”

Analysis

The verdict tears down the cloak of secrecy about unaccounted deaths involving security forces in disturbed areas and serves as a judicial precedent to uphold civilian and human rights in sensitive areas under military control.

“Accountability is a facet of the rule of law.” By putting AFSPA to stand the test of larger principles of human rights, the court has established the supremacy of rule of law and democracy in the nation.

The court has made clear that cases involving allegations of extrajudicial killings —have to be investigated, regardless of whether the person concerned is a dreaded criminal, terrorist or insurgent.

The court has reminded the authorities of the circumstances in which the use of force, even to the point of causing death, is immune from prosecution and the Army’s own list of dos and don’ts while operating in a disturbed area.

It has rejected the notion that every person bearing arms in a disturbed area is ipso facto an “enemy”.

Drawbacks of the judgement:

It could have a demoralising effect on the armed forces while operating in disturbed areas

Several army officers support the opinion that such immunity is very much required for officers to successfully discharge their duties in disturbed areas.

False complaints of abuse under AFSPA could be an easy resort to prevent officers from doing their duty.

Way forward

The court has rightly upheld the human rights over and above need for impunity. The duty of the state to protect and provide for its citizens and maintain rule of law are certainly supreme and form the basic foundation for the concept of a “State”

In this context, reform and suitable phased withdrawal of AFSPA at least from less-disturbed areas is very much the need of the hour.

The occasion calls for an investigation into allegations of enforced disappearances and extrajudicial killings, especially those already documented or partially probed.

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